State ex rel. Counsel for Dis. v. Seyler

consistently with an exception for alcohol used in flavorings,
the Act unambiguously required the Commission to define
any beverage containing more than an insignificant amount
of distilled alcohol used for flavoring as a “spirit” and to tax
it accordingly.
A ffirmed.
G errArd, J., not participating in the decision.
WriGht, J., not participating.
StAte of NebrASkA ex rel . C ouNSel for diSCipliNe
of the NebrASkA Supreme C ourt, relAtor , v.
pAul W. Seyler , reSpoNdeNt.
809 N.W.2d 766
Filed March 2, 2012. 	No. S-11-252.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. 	____. The basic issues in a disciplinary proceeding against an attorney are
whether discipline should be imposed and, if so, the type of discipline appropriate
under the circumstances.
3. ____. Neb. Ct. R. § 3-304 provides that attorney misconduct shall be grounds for
disbarment, suspension, probation in lieu of or subsequent to suspension, censure
and reprimand, or temporary suspension by the court, or private reprimand by the
Committee on Inquiry or Disciplinary Review Board.
4. ____. To determine whether and to what extent discipline should be imposed in
an attorney discipline proceeding, the Nebraska Supreme Court considers the fol-
lowing factors: (1) the nature of the offense, (2) the need for deterring others, (3)
the maintenance of the reputation of the bar as a whole, (4) the protection of the
public, (5) the attitude of the offender generally, and (6) the offender’s present or
future fitness to continue in the practice of law.
5. ____. The determination of an appropriate penalty to be imposed on an attorney
in a disciplinary proceeding requires the consideration of any aggravating or
mitigating factors.
6. ____. With respect to the imposition of attorney discipline in an individual case,
the Nebraska Supreme Court evaluates each attorney discipline case in light of its
particular facts and circumstances.
7. ____. In an attorney disciplinary proceeding, it is necessary to consider the dis-
cipline that the Nebraska Supreme Court has imposed in cases presenting simi-
lar circumstances.
Original action. Judgment of suspension.
STATe ex Rel. COuNSel FOR DIS. v. SeyleR 	401
Cite as 283 Neb. 401
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

Kent 	l. 	Frobish, Assistant 	Counsel 	for 	Discipline, 	for
relator.
Andre R. Barry, of Cline, Williams, Wright, Johnson &
Oldfather, l.l.P., for respondent.
heAviCAN, 	C.J., 	C oNNolly, 	StephAN, 	mCC ormACk , 	and
miller-lermAN, JJ.
per C uriAm.
INTRODuCTION
The Counsel for Discipline of the Nebraska Supreme Court
filed formal charges against respondent, Paul W. Seyler. After a
formal hearing, the referee found that Seyler had violated vari-
ous provisions of the Nebraska Rules of Professional Conduct
and his oath of office as an attorney. The referee recommended
a public reprimand. The Counsel for Discipline filed exceptions
to the referee’s recommendation and asks this court to suspend
Seyler from the practice of law.
BACKGROuND
Seyler was admitted to the practice of law in 1997. Between
1997 and 2004, he worked as a staff attorney, vice president
of operations, or marketing officer for various life insurance
companies. Beginning in 2004 and continuing to the time of
the hearing, Seyler was working as the director of operations
for a life insurance brokerage. Seyler also practiced law in an
office-sharing arrangement with two other attorneys, beginning
in 2003. Most of his legal work was in the area of estate plan-
ning. Seyler testified that he handled one breach of contract
case, but that it was ultimately dismissed and did not go to
trial. Before September 2006, Seyler had never represented a
client with a personal injury claim. He admitted that he had
little litigation experience.
In 	September 	2006, 	Seyler 	agreed 	to 	represent 	Tonja
Peterson-Wendt and Jason Wendt in a personal injury action.
Peterson-Wendt asked Seyler to represent her because she
was working with an insurance adjuster and had been having
trouble resolving a claim arising from a traffic accident.
Seyler filed a complaint on behalf of Peterson-Wendt and
Wendt on July 28, 2008, after researching examples and
402 	283 NeBRASKA RePORTS

looking at form books. Seyler stated that his original impres-
sion was that Peterson-Wendt wanted her attorney to talk to
the insurance adjuster to try to settle the case and avoid going
to court.
The complaint named Charles Wilkinson as the defend-
ant. Wilkinson’s attorney, Stephen Ahl, filed an answer on
Wilkinson’s behalf on August 21, 2008, and served initial dis-
covery requests on Seyler that same day. Seyler did not timely
respond to the discovery requests, and Ahl wrote Seyler on
November 7 and December 1, asking about the status of the
overdue responses. When no response was received, Ahl filed
a motion to compel answers to discovery, and a hearing was
scheduled for December 29. During this time, Seyler did not
send copies of Ahl’s discovery requests to his clients, nor did
he inform his clients of the motion to compel.
Seyler failed to attend the hearing on the motion to com-
pel on December 29, 2008, and on December 31, the court
issued an order directing Seyler’s clients to produce discovery
responses within 14 days. The order indicated that Seyler’s
clients could be barred from introducing evidence if they did
not comply. On January 7, 2009, Seyler informed his clients of
the need to respond to discovery requests, but he did not pro-
vide them with a copy of the order. Seyler sent his discovery
answers to Ahl on January 14.
On June 12, 2009, Ahl served a second set of discovery
requests on Seyler, who failed to respond. Ahl sent a followup
letter to Seyler on July 23, requesting the overdue responses.
Seyler did not respond to the letter, and Ahl filed a motion to
compel answers on August 11. The hearing on the motion to
compel was set for September 4. Seyler did not file a response
to the discovery requests, nor did he attend the hearing or
request a continuance.
The district court entered an order sustaining Ahl’s motion
to compel discovery and ordered Peterson-Wendt and Wendt
to produce the discovery responses within 10 days. The court
warned that failure to comply could result in being barred from
introducing evidence. Seyler received a copy of the order, but
did not send a copy to his clients or inform them of the order’s
contents. Seyler also failed to comply with the order.
STATe ex Rel. COuNSel FOR DIS. v. SeyleR 	403
Cite as 283 Neb. 401

Ahl filed a motion for sanctions against Peterson-Wendt and
Wendt on September 28, 2009. Ahl requested that the court
preclude the introduction of evidence regarding loss of income
from Peterson-Wendt’s cosmetics business. A hearing on the
motion for sanctions was set for October 9. Seyler once again
failed to inform his clients about the motion and hearing and
failed to attend the hearing.
The district court entered an order precluding introduction
of evidence of Peterson-Wendt’s loss of income, diminution of
earning capacity, or financial losses of any type. Seyler did not
send a copy of the sanction order to his clients. At no point did
Peterson-Wendt tell Seyler that she would limit or forgo her
claim for lost income. Peterson-Wendt testified that Seyler told
her the claim for lost income had been thrown out by the court
because it was baseless.
eventually, Seyler took Peterson-Wendt’s claim to mediation
and settled for $30,000, even though her Medicare costs were
in excess of that amount. The settlement was not apportioned
as part of the agreement, and Peterson-Wendt now has another
attorney assisting her in sorting out Medicare subrogation
claims and liens. Seyler did not bill Peterson-Wendt from the
beginning of his representation in September 2006 through the
mediation in 2010. He ultimately waived his attorney fees and
out-of-pocket expenses.
During the hearing before the referee on the disciplinary
charges, Seyler could offer no explanation for his failure
to attend the hearings and failure to comply with discovery
requests, except to state that he did not read the documents
closely enough, did not schedule the case properly, and was not
diligent enough in keeping on top of the case.
The Counsel for Discipline filed formal charges against
Seyler, alleging that his actions constituted violations of his
oath of office as an attorney under Neb. Rev. Stat. § 7-104
(Reissue 2007) and the following provisions of the Nebraska
Rules of Professional Conduct:
§ 3-501.1. Competence.
A lawyer shall provide competent representation to
a 	client. 	Competent 	representation 	requires 	the 	legal
404 	283 NeBRASKA RePORTS

knowledge, skill, thoroughness, preparation and judgment
reasonably necessary for the representation.
. . . .
§ 3-501.3. Diligence.
A 	lawyer 	shall 	act 	with 	reasonable 	diligence 	and
promptness in representing a client.
. . . .
§ 3-501.4. Communications.
(a) A lawyer shall:
(1) promptly inform the client of any decision or circum-
stance with respect to which the client’s informed consent,
as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means
by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status
of the matter;
(4) [and] promptly comply with reasonable requests
for information[.]
. . . .
(b) A lawyer shall explain a matter to the extent rea-
sonably necessary to permit the client to make informed
decisions regarding the representation.
. . . .
§ 3-508.4. Misconduct.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional
Conduct[,] knowingly assist or induce another to do so or
do so through the acts of another;
. . . .
(d) engage in conduct that is prejudicial to the admin-
istration of justice.
The referee found clear and convincing evidence that Seyler
violated Neb. Ct. R. of Prof. Cond. §§ 3-501.1, 3-501.3,
3-501.4, and 3-508.4, as well as his oath of office, by failing
to competently represent Peterson-Wendt, failing to act with
reasonable diligence, failing to properly communicate with
Peterson-Wendt, and engaging in conduct prejudicial to the
administration of justice. The referee recommended Seyler be
STATe ex Rel. COuNSel FOR DIS. v. SeyleR 	405
Cite as 283 Neb. 401

issued a public reprimand. Both Seyler and the Counsel for
Discipline took exception to the referee’s report.
ASSIGNMeNTS OF eRROR
The Counsel for Discipline contends that the referee’s rec-
ommended sanction of a public reprimand is too lenient and
that Seyler should be suspended from the practice of law for
no less than 90 days.
ANAlySIS
[1-3] A proceeding to discipline an attorney is a trial de
novo on the record.1 The basic issues in a disciplinary pro-
ceeding against an attorney are whether discipline should be
imposed and, if so, the type of discipline appropriate under the
circumstances.2 Neb. Ct. R. § 3-304 provides that the following
may be considered as discipline for attorney misconduct:
(A) Misconduct shall be grounds for:
(1) Disbarment by the Court; or
(2) Suspension by the Court; or
(3) Probation by the Court in lieu of or subsequent to
suspension, on such terms as the Court may designate; or
(4) Censure and reprimand by the Court; or
(5) Temporary suspension by the Court; or
(6) Private reprimand by the Committee on Inquiry or
Disciplinary Review Board.
(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above.
Seyler does not contest that the specific misconduct alleged
in the formal charges supports the referee’s finding that Seyler
violated his duties of competence, diligence, and communica-
tions. Thus, the issue before us is the appropriate discipline to
be imposed.
[4-6] To determine whether and to what extent discipline
should be imposed in an attorney discipline proceeding, this
court considers the following factors: (1) the nature of the
1 State ex rel. Counsel for Dis. v. Bouda, 278 Neb. 380, 770 N.W.2d 648
(2009).
2 State ex rel. Counsel for Dis. v. Wintroub, 281 Neb. 957, 800 N.W.2d 269
(2011).
406 	283 NeBRASKA RePORTS

offense, (2) the need for deterring others, (3) the maintenance
of the reputation of the bar as a whole, (4) the protection of
the public, (5) the attitude of the offender generally, and (6)
the offender’s present or future fitness to continue in the prac-
tice of law.3 The determination of an appropriate penalty to be
imposed on an attorney in a disciplinary proceeding requires
the consideration of any aggravating or mitigating factors.4
With respect to the imposition of attorney discipline in an indi-
vidual case, we evaluate each attorney discipline case in light
of its particular facts and circumstances.5
The referee relied on State ex rel. Counsel for Dis. v. Orr6 to
recommend that the appropriate discipline for attorney incom-
petence, without other misconduct, is a public reprimand. The
Counsel for Discipline argues that the appropriate discipline
in this case is not limited by Orr, because Seyler was found
to have violated rules in addition to the rule regarding compe-
tence. Specifically, Seyler was also found to have failed to act
with reasonable diligence and promptness in representing his
clients (§ 3-501.3), failed to reasonably communicate with his
clients (§ 3-501.4), and engaged in conduct that was prejudi-
cial to the administration of justice (§ 3-508.4(d)). In contrast,
the attorney in Orr was found only to have violated the rule
regarding competence.
In Orr, the attorney was asked to assist two clients in
franchising a business.7 The attorney had limited experience
in the field of franchising law. Over a period of several
years, the clients used documents prepared by the attorney
which did not conform to requirements of the Federal Trade
Commission. The franchising of the business was virtually
ended as a result of the legal difficulties arising from the
attorney’s representation.
3 Bouda, supra note 1.
4 Wintroub, supra note 2.
5 Bouda, supra note 1.
6 State ex rel. Counsel for Dis. v. Orr, 277 Neb. 102, 759 N.W.2d 702
(2009).
7 Id.
STATe ex Rel. COuNSel FOR DIS. v. SeyleR 	407
Cite as 283 Neb. 401

Formal charges were brought against the attorney, alleging
that he provided incompetent representation. The referee found
the attorney in violation of the disciplinary rules and recom-
mended a public reprimand. We accepted the recommendation
and issued a public reprimand.8
In Orr, this court expressed concern about an attorney
attempting a legal procedure without ascertaining the law
governing that procedure.9 We found it inexcusable that the
attorney, who had practiced law for 40 years, did little or no
research into state or federal franchising law until long after he
received notice of a problem with the franchising documents.
“We take this opportunity to caution general practitioners
against taking on cases in areas of law with which they have
no experience, unless they are prepared to do the necessary
research to become competent in such areas or associate with
an attorney who is competent in such areas.”10 This court stated,
“We have found no support in the case law for a suspension for
incompetence without other misconduct, such as dishonesty.”11
Seyler urges this court to impose the same discipline as that
imposed in Orr because both cases involve an attorney’s com-
petence. The Counsel for Discipline seeks additional discipline
in the form of suspension.
[7] As noted above, in attorney discipline cases, we evalu-
ate each case in light of its particular facts and circum-
stances.12 However, we have also said that it is necessary to
consider the discipline imposed in cases presenting similar
circumstances.13
In a matter involving an attorney who represented com-
peting interests and mishandled a real estate case, this court
8 Id.
9 Id.
10 Id. at 110, 759 N.W.2d at 709.
11 Id. at 109, 759 N.W.2d at 708.
12 Bouda, supra note 1.
13 State ex rel. Counsel for Dis. v. Switzer, 280 Neb. 815, 790 N.W.2d 433
(2010).
408 	283 NeBRASKA RePORTS

imposed a 90-day suspension.14 The attorney misrepresented
the status of estate proceedings and the legal status of real
property, engaged in multiple employments which involved
different interests, and neglected legal proceedings. We found
that the attorney’s actions violated several disciplinary rules
as well as his oath of office as an attorney. Mitigating factors
included his cooperation during the disciplinary proceeding,
his continuing commitment to the legal profession and the
community, and the lack of evidence of any harm to the cli-
ents. Factors weighing against the attorney included his lack
of willingness to take responsibility for his conduct and a
prior reprimand.15
We also imposed a 90-day suspension in a case in which an
attorney who practiced insurance defense left employment with
a law firm and retained three files he believed warranted settle-
ment.16 When one of the cases he believed should be settled
was set for trial, the attorney failed to inform his client about
the trial and never contacted anyone at the insurance company
about the need to settle the suit. The attorney did not file a
motion to continue, he was not prepared to go to trial, and he
did not have the authority to settle the case. The attorney con-
tinued as though he had authority to settle, and he made mul-
tiple false statements to opposing counsel and the court.17
A 90-day suspension was imposed in a case in which the
attorney had a conflict and failed to obtain informed consent
from his client or the opposing client.18 A custodial father
hired the attorney to seek a modification in a custody agree-
ment so that he could move his children out of the state. In
addition to failing to properly address the conflict, the attorney
failed to prepare and file a witness list, which led the court to
refuse to allow the client to take his children out of state. The
14 State ex rel. Counsel for Dis. v. Koenig, 264 Neb. 474, 647 N.W.2d 653
(2002).
15 Id.
16 Bouda, supra note 1.
17 Id.
18 State ex rel. Counsel for Dis. v. Sellers, 280 Neb. 488, 786 N.W.2d 685
(2010).
STATe ex Rel. COuNSel FOR DIS. v. SeyleR 	409
Cite as 283 Neb. 401

attorney was found to have violated Neb. Ct. R. of Prof. Cond.
§§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4 (com-
munications), 3-501.7 (conflict of interest), 3-501.10 (imputa-
tion of conflicts of interest), and 3-508.4 (misconduct).19
An attorney who accepted representation of a medical mal-
practice case although he had little experience in handling
such actions was suspended from the practice of law for 4
months.20 The attorney accepted payments from the client and
obtained medical records, but he did little other work on the
case. The attorney eventually notified the client that he was
ending his representation, but he did so without ever having
filed a lawsuit, advising the client as to the statute of limita-
tions, or helping her secure another attorney. Although the
attorney eventually repaid the client her advance payments for
costs, he failed to deposit one of her payments into his attorney
trust account.21
A 30-day suspension was ordered for an attorney who was
retained to help an organization obtain nonprofit corpora-
tion status, even though he primarily practiced in the areas
of domestic relations and criminal law.22 The attorney failed
to complete the matter and failed to notify the organization
that he was unable to do so. He closed his office and moved
out of state without informing the organization. He repaid
some of the fee and expenses the organization had paid him,
but not until after formal disciplinary charges had been filed
against him.23
We have also issued a public reprimand, rather than impos-
ing a suspension, in a case involving the failure to adequately
pursue a legal matter.24 The attorney was retained to represent
19 Id.
20 State ex rel. Counsel for Dis. v. Muia, 266 Neb. 970, 670 N.W.2d 635
(2003).
21 Id.
22 State ex rel. Counsel for Dis. v. Barnes, 275 Neb. 914, 750 N.W.2d 668
(2008).
23 Id.
24 State ex rel. Counsel for Dis. v. Hart, 265 Neb. 649, 658 N.W.2d 632
(2003).
410 	283 NeBRASKA RePORTS

a client in an employment discrimination case, but he failed to
contact relevant agencies about her claims, failed to discuss her
claims with her former employer or coworkers, failed to review
documents, failed to conduct research, and failed to advise the
client of any statute of limitations issues. In issuing the public
reprimand, this court noted that the misconduct was an isolated
matter and that the attorney had cooperated with the discipli-
nary proceeding.25
In addition to a public reprimand, this court imposed an 18-
month period of probation for an attorney who drafted a settle-
ment agreement in a dissolution action, but then neglected the
case.26 The client had repeatedly attempted to contact the attor-
ney for several months and eventually terminated the attorney-
client relationship. We ordered that the attorney be monitored
by an attorney during the probationary period.27
We imposed the same discipline—public reprimand and
18-month probation—in a case in which the attorney unduly
delayed completing legal matters in the representation of two
separate clients.28 The attorney also failed to deposit a retainer
in her attorney trust account. In a second case, the same attor-
ney was given a public reprimand and ordered to serve a 12-
month period of probation to run consecutively to the previous
probationary period.29 The charges in the second case were
similar to the first, although they involved distinct clients. The
events in both cases occurred during the same timeframe and
occurred before discipline was imposed in the first case.30
We consider a number of factors in determining the appro-
priate discipline to impose. Seyler’s misconduct arose from his
failure to litigate a personal injury claim of Peterson-Wendt.
25 Id.
26 State ex rel. Counsel for Dis. v. Kleveland, 270 Neb. 52, 703 N.W.2d 244
(2005).
27 Id.
28 State ex rel. Counsel for Dis. v. Waggoner, 267 Neb. 583, 675 N.W.2d 686
(2004).
29 State ex rel. Counsel for Dis. v. Waggoner, 268 Neb. 895, 689 N.W.2d 316
(2004).
30 Id.
STATe ex Rel. COuNSel FOR DIS. v. SeyleR 	411
Cite as 283 Neb. 401

From the time Seyler was hired to the date of mediation
4 years later, Seyler’s only action was to file a complaint.
He then failed on several occasions to respond to discovery
requests from opposing counsel. He failed to attend hearings
and offered no explanation, except to state that he was not
diligent enough.
Seyler failed to inform his clients about the status of the
case, including the order imposing sanctions. Seyler did not
explain to his clients the reason they could not present evi-
dence of lost profits. As the referee determined, Seyler had
little to no experience in litigating a personal injury claim
and seemed to have no understanding of the proof that was
necessary to demonstrate that Peterson-Wendt had lost profits
from her business. There was also evidence that at least at the
time of the hearing before the referee, Seyler’s incompetence
had resulted in Peterson-Wendt’s inability to recover the full
amount of her medical bills. Seyler offered no explanation for
his failure to appear at court hearings.
We also take into consideration any aggravating and miti-
gating factors. As to mitigating factors, we find that Seyler
has had no prior disciplinary complaints. He did not charge
Peterson-Wendt for his services and worked, without charge,
with her and new counsel during the mediation. Seyler coop-
erated with the Counsel for Discipline. He expressed remorse
and stated that he wished he had handled the case to achieve a
better outcome. Seyler offered two letters of support as char-
acter references. Both letters support his good standing in the
community. Seyler stated that he would no longer accept any
cases for which he is not qualified.
As 	aggravating 	factors, 	we 	note 	that 	although 	Seyler
expressed some remorse, he seemed unwilling to accept full
responsibility for his actions. He did not immediately address
the problem, continuing to ignore discovery requests and to
intimate to Peterson-Wendt that the case was proceeding in a
positive manner. Seyler did not explain to his client the rea-
son she was not allowed to present evidence of lost profits.
According to Peterson-Wendt’s testimony, Seyler told her that
the lost profits claim had been thrown out because it was base-
less. Seyler did not tell Peterson-Wendt about the sanction
412 	283 NeBRASKA RePORTS

imposed by the trial court. Based on Seyler’s mishandling of
the case, Peterson-Wendt was precluded from offering any
evidence of lost profits or other economic damages, and the
settlement did not cover her medical bills.
Seyler argues that the facts of his case are similar to those
in Orr31 and that he should receive only a public reprimand.
We disagree. In Orr, the attorney was found to have provided
incompetent representation in attempting to handle a franchis-
ing agreement. In the case at bar, Seyler was found by the ref-
eree to have provided incompetent representation in attempting
to handle a personal injury claim. Seyler’s incompetence may
have resulted in a financial loss to his client because he did not
understand the importance of proving damages. Seyler’s fail-
ures in responding to discovery requests and failing to attend
hearings had an impact on the opposing party, his counsel, and
the court.
Seyler admitted that he never informed the court he did not
plan to attend the hearings and that he never requested a con-
tinuance. The misconduct in Orr impacted the attorney’s cli-
ents, as did Seyler’s actions. But his failure to attend hearings
and to notify the court of his intent not to attend also resulted
in court resources being expended unnecessarily.
Seyler continued to misrepresent the progress of the case,
failed to inform his client about the sanctions, and apparently
did not competently handle the mediation. He agreed to accept
a personal injury case, even though he had no experience in
that area of law. Seyler did not file a complaint until 2 years
after he accepted the case. He admitted that he drafted the
complaint after looking at form books and other examples, but
he did not consult with any other attorneys who had experience
with similar types of cases.
In addition, the referee found, and Seyler did not dispute,
that Seyler violated his duty of diligence, that he violated
his responsibility to communicate with his client, and that he
engaged in misconduct. Thus, Seyler violated several rules of
professional conduct, while in Orr, the attorney was found to
have violated only one rule.
31 Orr, supra note 6.
STATe ex Rel. COuNSel FOR DIS. v. SeyleR 	413
Cite as 283 Neb. 401

We find that a public reprimand is too lenient given the facts
and circumstances of this case. We therefore impose a 30-day
suspension from the practice of law.
CONCluSION
Based upon our consideration of the record in this case,
this court finds that Seyler has violated §§ 3-501.1, 3-501.3,
3-501.4, and 3-508.40 and his oath of office as an attorney. We
order that Seyler should be and hereby is suspended from the
practice of law for a period of 30 days, effective immediately.
Seyler shall comply with Neb. Ct. R. § 3-316 and, upon fail-
ure to do so, shall be subject to a punishment for contempt of
this court.
At the end of the 30-day suspension period, Seyler shall be
automatically reinstated to the practice of law, provided that
he has demonstrated his compliance with § 3-316 and further
provided that the Counsel for Discipline has not notified this
court that Seyler has violated any disciplinary rule during his
suspension. We also direct Seyler to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2007) and Neb. Ct. R. §§ 3-310(P) and 3-323(B) within 60
days after an order imposing costs and expenses, if any, is
entered by this court.
JudGmeNt of SuSpeNSioN.
WriGht, J., not participating.
StAte of NebrASkA, Appellee , v. Servio diAz , AppellANt.
808 N.W.2d 891
Filed March 2, 2012. 	No. S-11-254.
1. Judgments: Proof: Appeal and Error. One seeking a writ of error coram nobis
has the burden to prove entitlement to such relief.
2. Judgments: Appeal and Error. The findings of the district court in connection
with its ruling on a motion for a writ of error coram nobis will not be disturbed
unless they are clearly erroneous.
3. Appeal and Error. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court.
4. Judgments: Constitutional Law: Legislature: Appeal and Error. The common-
law writ of error coram nobis exists in this state under Neb. Rev. Stat. § 49-101
414 	283 NeBRASKA RePORTS